2013 has been an absolute kicking for the Metropolitan Police. #Plebgate is nothing compared to the Mark Duggan inquest. And, the Mark Duggan inquest is mild when one considers the admissions that Doreen Lawrence was the victim of a police led smear campaign.

At the same time, the Met’s PR department, sorry ‘communications’ department, has gone from 150 to 100 members of staff. Despite the disasters, one of their PRs was promoted to the head of PR for Surrey Police.

The crisis in police PR was such that in October, Henry Porter described police corruption as ‘rife’ and Sir Bernard Hogan-Howe had to promise to be ‘ruthless’ in rooting it out.

Stories have filtered through the robing rooms that the public, in particular some juries, have not reacted well to police malpractice. One story filtered through shortly after the ‘Watson’ settlement (defence lawyer locked up unlawfully – not the Met of course), one jury was heard repeatedly to say that they wouldn’t believe a word the police said.

And that’s really the PR problem. At present it is only certain communities which really are entrenched when it comes to distrusting the police. But, the wider community have no tolerance for the Doreen Lawrence type scenario.

‘Us and them’ is fatal to any police force that seeks to police by consent. And any other model of policing would never be accepted in a liberal democracy.

It’s in the context, of all this that I was recently asked about my, ‘policy’ toward police instructions. Quite simple, I will defend an individual officer, I won’t defend the institution (i.e I won’t act for police forces.)

I understand that the upper tiers of the institution do not reflect the reality of what goes on at the grass-roots. And despite the positive noises, the public are starting to realise the same.

In 2013 I’ve had two very conflicting experiences of the same police force. One morning, my car was broken into along with two of my neighbours. I didn’t call the police, my neighbour did. Two response officers attended, they were polite, interested and respectful. Then a SOCO turned up, she was even better. And, then, the DC assigned the OIC was very good too. In my view, the best PR the Met can get.

Later in the year it was a rare foray back to the Mags’. I was defending a private client on a minor matter. Three officers attended, there was an air outside the Court straight away. Slouching, exasperated huffs, attempts at staring me out and the Defendant. (I point out, this wasn’t even an assault PC job or similar…). There was even a touch of childish whispering.

I’d been on the receiving end of this plenty of times before in the Mags (there’s rarely senior officers around or officers knocking about from specialist, ‘high respect’ squads as you find in the Crown Courts of London) and ignored it.

After the first witness gave evidence, there was a break, I walked outside, and instantly, I find one of the police witnesses talking to the witness. A full blown conversation. I couldn’t believe it. I told them to stop it, another officer, the OIC, made some remark I couldn’t hear, but was clearly full brush of attitude.

The officer who had spoken to the witness, got in Court, I put to him that he had been having a conversation with the civilian witness – ‘no, just told him I wasn’t allowed to speak to him’. I had been there, close enough, I knew that wasn’t true.

And when that officer lied, that to me had more of an impact than Plebgate, Duggan or Doreen Lawrence. That was an affront.

I know that we don’t live in a Capital city where all the police are bad. That’s why I will represent individual officers.

I am convinced that those 100 Eddie Monsoons would be better replaced. With 50 good coppers in professional standard and another 50 good coppers training up those who don’t meet Sir Bernard Hogan-Howe’s gold standard.

I’m sure St Basil’s Cathedral is beautiful and that borsch grows on you, but, I don’t want to live in Russia. Nor do I want to live in Zimbabwe, North Korea, Iran or any other country that doesn’t recognise basic human rights.

I’m not asking for much: I want to live in a country where I can express myself freely without the risk of arrest, where I can practice my religion (or lack thereof), where I can live freely without unlawful interference of my property or person by the State, where I won’t be locked up without due process.

Theresa May said yesterday that the next Conservative Manifesto would promise to repeal the Human Rights Act.

As an aside, the Human Rights Act doesn’t actually give anybody any new rights. What it simply does is incorporate the European Convention on Human Rights directly into English law. I.e, you can enforce one of your ECHR rights in an English Court of any level, rather than having to go to every English Court and then go to Strasbourg. If you didn’t know, you have had ECHR rights since the 1950s, they were thought to be essential by great men and women: Churchill. Being a signatory to the Convention is a necessary condition before a nation is able to ascend to EU membership.

The ECHR is simple enough, google it, simple things like the right to life, the right to a fair trial. Things that you want, that you expect.

Let’s be honest, Theresa May isn’t saying that she doesn’t want you to have those rights. She’s keen to express herself and live freely without the risk of arbitrary arrest.

No, the truth is, that a poisonous section of our society do not like the universal aspect of human rights.

And that varies in degree:

Why should prisoners have rights? They committed crimes, they’ve been taken out of society.

Why should asylum seekers have rights? They aren’t in their home country, they’re guests in somebody elses.

Why should the unemployed have rights? They aren’t contributing economically to society, why should they be protected by it.

Uncomfortable yet? My skin is crawling.

What about disabled people with genetic conditions. Should they have the unfettered right to reproduce?

Or, what about the mentally ill? Or children?

Now I’m feeling a little sick.

The haves and have nots

Repeal the Human Rights Act, in reality we’re all have nots. Not being able to directly enforce one’s Convention rights in domestic Courts is not a positive thing. Nor, in reality to any of us benefit from the legal situation of suddenly extracting those rights from the system, especially when 10 years of common law decisions are based on the Convention having direct effect. Legal uncertainty is not a good thing, especially when it concerns the rights of the individual.

The citizens and the slaves

Those with a historic inclination would be probably say that the Magna Carta is the first real human rights document, and hoorah, it’s British. But, there is a simpler, much earlier document:

When Cyrus the Great conquered Babylon he freed all of the city’s slaves. He declared that all races were equal and that one was free to choose one’s own religion. That was in 539 BC.

My view is simple. There is a minimum standard that everyone deserves. If you decide that certain people don’t deserve that minimum standard then they are little more than slaves.

If you argue that not everyone deserves human rights, then be sure never to visit a country where human rights aren’t universal, as you may find yourself in that minority without protection.

Contrary to popular belief, criminal defence lawyers do not have an arsenal of ‘tricks of the trade’ at their fingertips which allow them to take advantage of ‘loopholes’. The famed, ‘technicality’, is a rarity.

To stop a trial before you set sail takes a lot to do. One of the great joys in my career has been arguing that a criminal trial would be so unfair that the Court ought not hear it. I’ve won a few of those arguments, almost always because of police misconduct or missing evidence.

These are called abuse of process arguments. A lot of time is spent at Bar School teaching people about such arguments, a lot of time spent by barristers and solicitors debating such arguments and often large parts of the Court 2 and 3 list at the Royal Courts of Justice debating them on appeal.

One thing you don’t spend a lot of time learning about is another way of stopping a trial: having it dismissed for want of prosecutor.

The presumption these days

It is presumed these days that if a Defendant does not turn up for her trial that it will go on without her. And what you’re taught at Bar School (albeit for five minutes on a Friday afternoon after you’ve been in the pub at lunch) is that if a prosecutor does not turn up to do your trial, then one apply for a case to be dismissed for want of prosecution.

The law can be put quickly enough: The leading case is R (on the application of CPS) v Portsmouth Crown Court 23. The reasoning in Portsmouth can be summarised as such: if the Prosecutor/Respondent fails to attend, the Court should not simply dismiss the charge/ allow the appeal, (a) without making vigorous enquiries as to the Prosecutor/Respondent’s whereabouts, and (b) if having made those enquiries it turns out that there is a prosecutor en route and the case is ready to be presented.

Indeed, in Portsmouth the earlier case of the Hendon Justices [1967] 1 QB 167 was noted, in particular at 174C, Mann LJ, giving the judgment of the court, said:

“However, the duty of the court is to hear informations which are properly before it. The prosecution has a right to be heard and there is a public interest that, save in exceptional circumstances, it should be heard. A court’s irritation at the absence of a prosecutor at the appointed time is understandable. That said, it can seldom be reasonable to exercise the power.

So, no prosecutor, no reason, no chance of starting the trial, then it is possible to apply to have the case dismissed.

Time to mark that page

An application to dismiss a case for want of prosecution is a rare thing. Thus why such little time is spent teaching it and it is rare that a lawyer will have the law in this regard at their fingerprints.

But, it would seem that times are changing. In the last two weeks, I have been turning up the law twice.

On the first occassion, I was doing a two day appeal in the Crown Court, nobody arrived to respond to the appeal. After three hours waiting and what was estimated at the Judge as being £5000 worth of wasted costs, the appeal was adjourned.

Today, three barristers, waited to start three different trials. No prosecutor arrived until lunch time and no reason was given why.

It’s all a game

Quite often people say to me, ‘oh I suppose it’s all a game to you’. To an extent part of the joy of being an advocate is persuading a Court to your position and gaining success for your client.

Abuse of process arguments are an art form in that regard.

But, this is no art at all. This is running from one end of the pitch and depositing the ball in the Prosecution’s net.

It does nothing for the reputation of our justice system at all, it makes it look weak and ineffectual.

It must too be taken as an alarm signal that the CPS is on the verge of collapse.

But, defence lawyers and the Judiciary should consider making and granting applications to dismiss prosecutions for want of prosecutor. Without such applications the problem will simply remain a collection of comments on a cracked trial form.

This is what happened when I found myself having to deal with British Airways and their impenetrable group booking system.

When they got to a month to the day of not replying to my letter of complaint, I thought I ought to email head man Keith Williams himself.

Dear Keith,

I’m not going to lie Keith, I’m disappointed. Yes, disappointed with the customer service I have received from British Airways. It feels jolly strange to say it Keith, but, I think I should tell you, so you know, I think British Airways are rude.

You see it all started when one of my chums from College decided to propose to his better half. Hallelujah Keith, she said yes, some of us were worried. Anyway, before he slapped on the old ball and chain, we thought it would be japes to have one of these, ‘lads on tour’ type weekends to Spain.

Travelling cattle class, but not wanting to sit with actual cattle we thought we better take our national airline. Send her victorious Keith, happy and glorious Keith. As a dab hand with the world wide web net, I was assigned the role of ‘Travel Inventory Topdog’ or shortened to the TIT.

As the TIT it was my responsibility to organise the flights for our party. As the TIT I was the first point of contact with your airline. And as your pal Sir Martin can tell you Keith, trying to organise 11 men in their 20s is not an easy task.

But oh my actual days Keith, you would think that the TIT could just log on, upload a few details and pop in his credit card details. You would imagine it’s simple to be a TIT but it really isn’t Keith.

Lists of names, deposits on this date, full payment on that date, not by credit card by bank transfer, you can’t check in online, the list goes on Keith.

But short before we were to fly Keith, I suddenly received a threatening letter from your airline. Despite having paid for the flights in full, we were told they were to be cancelled as I had not provided the names of my party promptly.

Let me assure you Keith, I was an attentive TIT. Where this deadline came from I have no idea. This letter made me feel that all the efforts I had gone to were wasted, in honesty Keith I felt like a useless TIT.

Upset with how difficult it is to use your group booking service, I wrote a letter to your customer service people a month ago Keith. However, having received no response I am rather irked.

I can assure you Keith that I will never be a TIT again and use your airlines group booking service.

Indeed, later this summer, I am travelling transatlantic with my girlfriend to the United States. If I am offered even the mere hint of rudeness from any of your staff, then I will never use your airline again. Even if that means flying with an airline which routinely causes deep vein thrombosis and has the safety record of a hedgehog on the M25.

I look forward to the copy and pasted reply from your third assistant personal assistant and the complimentary 10 airmiles and ‘Fly Iberia’ mug.

On my long train journey today I caught up with various blogs and news stories about criminal justice. It’s a habit indulged by the various bits of kit in my court bag which connect to the internet at high speed.

Today’s highlight for me was this http://www.no-offence.org/content.php/178-Guest-blog

Written by a gentleman who described himself as a ‘Change Manager’. As you’ll see, one of the reasons he concludes that the police are of low morale is because they aware that they aren’t providing a good service.

Respect

The Police Federation talk a lot about respect, they talk about how the Government should respect the police and how the public should do the same.

I actually agree.

However, what I don’t agree with is that respect is something automatic. I am not sure where this mantra came from. It seemed to first appear in schools, you must respect teachers, you must respect each other.

One of the reasons I became a barrister is because of schooling. When I grew up I thought it was unfair how students were treated by certain teachers, or how I was treated. I thought it wrong that I should respect people when they are doing things they shouldn’t do. The requirement to automatically respect something or someone leads to injustice.

And actually, the criminal justice system has in built into it a lack of ‘blind’ respect. If ‘blind respect’ was to rule supreme then we wouldn’t have trials, we would simply take what the police and witnesses say for granted. We wouldn’t have appeals, we would presume that trial judges got things correct on the first time and there would be no appellate process.

My Recipe for Respect

As said, I do not expect blind respect. In fact I think blind respect is wrong. However, to earn respect, I think all actors (from Usher to Supreme Court Justice) in the Criminal Justice system should sign up to the same:

To admit mistakes are made and that no actor is infallible.

To act with honesty and integrity.

To follow the law (even when you don’t like it)

To be courteous to all involved with the system (from Defendant to Victim to Probation Officer toParole Board Member etc etc)

To recognise that fairness is the central aim of criminal justice and without it the system cannot be fair at all.

Fairness and courtesy are linked

I think we overlook the link between fairness and courtesy. I personally think that reality police programmes do the police more harm than good. Often, the police are shown acting like law enforcement officials rather than officers of the peace. There’s a dispute, the police go and listen to the victim (clearly a courtesy as well as a duty) then often are seen arresting the complained of person, sticking them in the back of the police car and then start asking them questions about what happened.

It is a courtesy to listen. I know some people simply carry on when Magistrates start whispering to each other on the Bench, assuming they won’t be listened to. I don’t, I stand there in silence until they have finished. My biggest pet hate about the Magistrates’ Court is when Benches announce decisions without even turning to the Defence advocate, it is neither courteous nor is it fair.

I dislike in the Crown Court, colleagues who jump down people’s throats when they go off piste when answering a question. Just stop, ask the question again, and again, until the Judge directs the witness to answer. It has far more effect than being rude to a witness. A jury will prefer your courtesy and note the witness being evasive.

If an argument is being made ad hoc, or extempore, if you’re a Judge or Magistrate allow the advocate to at least set out what their argument is before dismissing it out of hand. Again a courtesy, but it goes to fairness.

If you’re a police officer at Court, don’t simply assume that your time is being wasted and don’t assume that you’re there because the Defence have demanded it.

And, if you’re an Officer In the Case, don’t tell the defence solicitor to ‘fuck off’ when she asks you a simple question outside Court. (True story…)

Only human

Going back to my recipe for respect, I have to admit, I may sound holier than thou now but I’ve had my fair share of moments. I’ve gone hard on rude witnesses, bickered with disagreeable legal advisors, traded verbal blows with bobbies, argued with the Chair of a Bench or two.

But my default position is polite. And as my Mother says, I shouldn’t rise to it

If all the actors in the criminal justice system received a base line of courtesy then there would be an appearance of fairness. Those who appear to be fair are likely to garner respect. A system where there is an appearance of fairness will attract respect.

Two days ago the CPS inspectorate announced that there was a quality gap between the advocacy skills of the CPS lawyers compared to those in private practice. In the Magistrates’ Court one of the areas which needs to be improved is cross examination.

I’m sorry, cross examination? For non-lawyers, cross examination is where one asks questions of the other side’s witnesses. So for your average CPS Mags’ Court prosecutor, asking the Defendant questions.

I’m sorry, but, cross examination, although an art at the higher end of things, is a pretty rudimentary skill in the Magistrates. If there’s a problem there, then there’s real problems.

When I was first on my feet I never thought that I outgunned the local CPS. Things balanced out, yes they were busy and had less preparation time, but I was green and still learning.

Now?

Frightening

I’ve been back in the Magistrates’ Court for two days this week. For two trials. I won both. Not because I wear a wig for a living, not because I went to Oxford, not because I’m sneaky, not because I’m lucky, not because of anything to do with me… (and worse, not necessarily due to the evidence!)

…but with them.

During both trials, the CPS in-house Prosecutor sent texts on their iPhone.

Neither brought a practitioner text into Court.

And neither had any recent authorities at their mental or physical fingertips.

In the first trial a lay bench had to explain the meaning of hearsay to the prosecutor as she continually attempted to adduce it, to the extent that the Chair of the Bench had to stop a witness and bark – ‘no, we’re not allowed to hear it.’

And today, during my half-time submission the announcement from the Prosecutor which left everyone in Court stunned, ‘this isn’t the Crown Court, you don’t have to prove all the elements of the offence.’ The Legal Advisor, stood up and advised the Magistrates immediately that they must ignore what she said, the Magistrates were in shock and much to my pleasant surprise, the Chair of the Bench announced – ‘it’s the same offence here as in the Crown Court, you still have to make us sure, and you have to make us sure of all the elements of the offence – the rules of evidence still apply.’

The first 6 pupil I have had with me to learn about the Magistrates’ Court cannot believe what he’s seeing and asked me if it’s always like this.

No, it’s not always been like this…

The reality is with money being cut the CPS have fewer available staff and have a much smaller budget for bringing in barristers.

The CPS extradition unit is Rolls Royce, all the lawyers are very good and are well resourced. My experience too of the terrorism team and the mass public disorder guys are the same.

But of course extradition is high profile and potentially has diplomatic impact. And, big scale public order offences are heavily featured in the media.

Yet, the reality is for man or woman on the street that they are not going to be involved in that type of case. They are going to have seen a shoplifting, or be a victim in a pub brawl, they will rely on the in-house CPS advocate.

And the reality is? Lawyers who joined the CPS to litigate, not advocate, have been sent out to the Magistrates. The experienced lawyers in the Magistrates’ Court are being promoted into management roles and away from the Courts. Or, those experienced lawyers are being forced into taking their Higher Rights and being made to process high volume hearings in the Crown Court.

And they’re being expected to do more. They’ll soon have to prosecute everything for the UKBA, they’ve already had to take in all the Revenue and Customs Prosecutions.

So, actually, I think they’re being expected to do a lot, too much.

And can they attract the talent? When I was coming to the Bar, the CPS were offering pupillage, it paid more than I would have got at the independent bar, would have given me a pension and better working conditions. Experienced barristers too were being brought in, offered decent salaries and a pension and a better work life balance, but that has ended too.

The solution?

Certainly not throwing more and more abuse at the CPS. And not throwing more cases at them!

1) Give power back to the prosecutor. Barristers with 20 or 30 years experience are no longer in control of cases. The specialist advocate before she makes a decision has to phone the CPS office and ask permission to do things. That advocate commands the fee (which is still, not great) that they do because of their speciality, give them the power back.

2) Get real(istic). Just because a case involves a domestic element, or a racial element does not mean it automatically has to be prosecuted. There’s a strong public interest in prosecuting these offences, but it doesn’t mean there’s strong enough evidence. Far too many cases come to court which have no hope of success.

3) Go it alone. The Government need to butt out of prosecuting as do the police. The DPP is not a member of the cabinet, he is not an MP. He is a civil servant and like other civil servants he ought to be able to enjoy the independence of the civil service. Cut the KPIs. As too, should the police realise they are not instructing the CPS. The opposite. Police officers should not be able to ‘appeal’ the decisions of prosecutors. Officers-in-charge of cases are not lawyers, they do not know better than the CPS, they should not be able to apply pressure for them to take a certain course.

Justice gap

A gap in quality of advocacy causes a risk of a gap in justice. I don’t want to win cases simply because my opponent is a shattered individual who never wanted to be an advocate.

The CPS are not badlawyersfar from it. But they are lawyers who are being expected to do jobs they never wanted to do, or were trained to do. Now, they’ll be prosecuting in higher courts, with new offences they have no experience of.

Do what the private prosecutors do (RSPCA, local authorities etc) focus prosecutions, really review them and properly fund them. Don’t push prosecutions through because it’ll win political points, even if it doesn’t win cases.